Students for Fair Admissions, Inc. v. President and Fellows of Harvard College et al

Filing 199

MEMORANDUM in Support re 185 MOTION for Judgment on the Pleadings on Counts IV and VI filed by M. B., K. C., Sarah Cole, Y. D., G. E., A. G., I. G., R. H., J. L., Fadhal Moore, Arjini Kumari Nawal, R. S., Itzel Vasquez-Rodriguez, Keyanna Wigglesworth. (Culleen, Lawrence)

UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF MASSACHUSETTS
BOSTON DIVISION

STUDENTS FOR FAIR ADMISSIONS,
INC,
Plaintiff,
v.

Civil Action No. 1:14-cv-14176-ADB

PRESIDENT AND FELLOWS OF
HARVARD COLLEGE (HARVARD
CORPORATION),
Defendant.

BRIEF OF STUDENT AMICI CURIAE
IN SUPPORT OF DEFENDANT’S MOTION
FOR JUDGMENT ON THE PLEADINGS ON COUNTS IV AND VI

TABLE OF CONTENTS
ARGUMENT.................................................................................................................................. 1
I.

Counts IV and VI Each Fail to State a Claim Because They Contradict Existing U.S.
Supreme Court Precedent ....................................................................................................... 1

II.

The Supreme Court Has Repeatedly Rejected the “Mismatch” Theory Asserted in
Count VI.................................................................................................................................. 2

CONCLUSION............................................................................................................................... 5

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TABLE OF AUTHORITIES
Page(s)
CASES
Fisher v. University of Texas at Austin,
133 S. Ct. 2411 (2013)...............................................................................................................2
Fisher v. University of Texas at Austin,
136 S. Ct. 2198 (2016)...........................................................................................................3, 5
Grutter v. Bollinger,
539 U.S. 306 (2003)...............................................................................................................1, 2
Regents of Univ. of California v. Bakke,
438 U.S. 265 (1978)...................................................................................................................2

OTHER AUTHORITIES
Brief of Empirical Scholars as Amici Curiae in Support of Respondents at 14–16,
Fisher v. University of Texas at Austin, 133 S. Ct. 2411 (2013) (No. 14-981)
(“Scholars’ Brief”) ................................................................................................................3, 4
Brief of Richard Sander & Stuart Taylor, Jr. as Amici Curiae in Support of
Neither Party at 6-8, 32-35, Fisher v. University of Texas at Austin, 133 S. Ct.
2411 (2013) (No. 11-345) (“Sander Fisher I Brief”) ................................................................3
Brief of Richard Sander as Amicus Curiae in Support of Neither Party at 17-20,
Fisher v. University of Texas at Austin, 136 S. Ct. 2198 (2016) (No. 14-981)
(“Sander Fisher II Brief”) .........................................................................................................3
Richard H. Sander, Mismeasuring the Mismatch: A Response to Ho, 114 Yale L.J.
2005, 2006 (2005)......................................................................................................................4
Richard H. Sander, A Systemic Analysis of Affirmative Action in American Law
Schools, 57 Stan. L. Rev. 367 (2004) ........................................................................................3
Stacy Berg Dale & Alan B. Krueger, Estimating the Payoff to Attending a More
Selective College: An Application of Selection on Observables and
Unobservables............................................................................................................................4
Stacy Berg Dale & Alan B. Krueger, Estimating the Return to College Selectivity
over the Career Using Administrative Earnings Data (Nat’l Bureau of Econ.
Research, Working Paper No. 17159, June 2011), available at
http://www.nber.org/papers/w17159 .........................................................................................4
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Transcript of Oral Argument, Fisher v. University of Texas at Austin,
136 S. Ct. 2198 (2016) (No. 14-981), available at
https://www.supremecourt.gov/oral_arguments/argument_transcripts/14-981_4h25.pdf........5

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Amici curiae (“Amici”) are a group of current and prospective students of Harvard who
value Harvard’s interest in promoting diversity through race-conscious admissions. The Court
granted students leave to participate in this action as amici, allowing students to “submit a brief
or memorandum of law . . . on any dispositive motion in this case.” Order at 23, June 15, 2015,
ECF No. 52. As Harvard’s motion for judgment on the pleadings is a dispositive motion, amici
file this brief in support. Neither Count IV nor Count VI states a claim upon which relief can be
granted. Further, the Supreme Court has soundly rejected the “mismatch” theory plaintiff asserts
in Count VI. Judgment should be made for Harvard on both counts.
ARGUMENT
I.

Counts IV and VI Each Fail to State a Claim Because They Contradict Existing U.S.
Supreme Court Precedent.
As Harvard explains, neither Count IV nor Count VI states a claim upon which relief can

be granted. Mem. in Supp. of Def.’s Mot. J. on the Pleadings on Counts IV and VI, 7-11, ECF
No. 186 (“Motion on Pleadings”). Count IV rests on a faulty premise. Plaintiff claims that
Harvard is in violation of Title VI because it “is not using race merely to fill the last few places
in the entering class.” Compl. ¶ 473. The Supreme Court never established such a requirement,
and it has approved admissions practices that consider the race of each member of an enrolling
class. Motion on Pleadings at 7-8 (citing Grutter v. Bollinger, 539 U.S. 306 (2003)).
Count VI asks this Court to overturn forty years of Supreme Court decisions “holding
that there is a compelling government interest in using race as a factor in admissions in pursuit of
‘diversity.’” Compl. ¶ 494. The Supreme Court has repeatedly ruled, most recently in Fisher II,
that race-conscious admissions are permissible. Fisher v. University of Texas at Austin,
136 S. Ct. 2198, 2210 (2016) (“Fisher II”) (“[A] university may institute a race-conscious

admissions program as a means of obtaining ‘the educational benefits that flow from student
body diversity’”) (citing Fisher v. University of Texas at Austin, 133 S. Ct. 2411, 2419 (2016)
(“Fisher I”)); Grutter v. Bollinger, 539 U.S. 306, 343 (2003) (“[T]he Equal Protection Clause
does not prohibit the Law School’s narrowly tailored use of race in admissions decisions to
further a compelling interest in obtaining the educational benefits that flow from a diverse
student body.”); Regents of Univ. of California v. Bakke, 438 U.S. 265, 320 (1978) (“[t]he State
has a substantial interest that legitimately may be served by a properly devised admissions
program involving the competitive consideration of race and ethnic origin”).
This Court is bound by Supreme Court precedent. Fisher II was decided this year, after
this case was filed. Under Fisher II, race-conscious admissions practices are permissible, for the
entire admissions pool or for a smaller subset. Circumstances have not changed in the four
months since the Fisher II decision, and plaintiff has presented no basis for finding its claims in
Counts IV and VI to be consistent with the outcome of Fisher II. Therefore, Harvard should be
granted judgment on the pleadings on both counts.
II.

The Supreme Court Has Repeatedly Rejected the “Mismatch” Theory Asserted in
Count VI.
Plaintiff alleges that race-conscious admissions practices harm “the very minority

students these programs are purported to benefit” and therefore such race-conscious admissions
policies cannot serve a compelling state interest. Compl. ¶ 501. This allegation essentially
restates the so-called “mismatch theory,” a theory that was squarely rejected in both Fisher I and
Fisher II. Mismatch theory posits that, when minority students are admitted to universities
through race-conscious admissions programs, they have academic credentials below the level of
their classmates’ and, therefore, do not thrive following enrollment, opting out of difficult majors
or graduate programs they would have otherwise pursued in schools better “matched” to their
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skill sets. See Richard H. Sander, A Systemic Analysis of Affirmative Action in American Law
Schools, 57 Stan. L. Rev. 367 (2004); Brief of Richard Sander & Stuart Taylor, Jr. as Amici
Curiae in Support of Neither Party at 6-8, 32-35, Fisher v. University of Texas at Austin, 133 S.
Ct. 2411 (2013) (No. 11-345) (“Sander Fisher I Brief”); Brief of Richard Sander as Amicus
Curiae in Support of Neither Party at 17-20, Fisher v. University of Texas at Austin, 136 S. Ct.
2198 (2016) (No. 14-981) (“Sander Fisher II Brief”).
Despite its continuing allure to Plaintiff, mismatch theory has been found untenable when
tested with empirical evidence. See Brief of Empirical Scholars as Amici Curiae in Support of
Respondents at 14–16, Fisher v. University of Texas at Austin, 133 S. Ct. 2411 (2013) (No. 14981) (“Scholars’ Brief”). Indeed, the consensus of empirical scholars over the past seventeen
years is that students of color attending universities with race-conscious admissions programs
achieve higher grades, graduate at higher rates, and secure greater earnings than their peers at
less selective schools. Id. at 14-16 (citing authorities).
Moreover, as was briefed and argued before the Supreme Court in Fisher II, mismatch
theory is methodologically flawed, violating basic principles of causal inference. Several notable
errors in the theory and leading research the purports to support mismatch theory were shown to
rely on questionable and unreliable research methods. Id. at 16-23. To show that one thing
causes another, researchers must generate comparison groups whose members are as similar as
possible to each other, so that different outcomes for each group may be accurately attributed to
different experiences, not pre-existing characteristics. Where they cannot fully account for preexisting dissimilarities, researchers must try to adjust for the dissimilarities using statistically
valid methods.

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Studies relied upon by mismatch theory proponents fail to achieve these important
research objectives. For example, studies purporting to show that race-based admissions policies
at law schools harm African Americans’ bar passage rates compared bar passage rates between
two dissimilar groups: African American students at more selective schools with white students
at less selective ones -- rather than comparing bar passage rates of African American students
who attended more selective law schools with African American students who attended less
selective law schools. Id. at 20 (citing Richard H. Sander, Mismeasuring the Mismatch: A
Response to Ho, 114 Yale L.J. 2005, 2006 (2005)).
That erroneous conclusions are drawn by mismatch theory proponents relying on such
studies has been addressed at great length by the amicus briefs filed by Empirical Scholars in the
Fisher cases and need not be restated here. Nevertheless, it is noteworthy that where researchers
have corrected the basic methodological flaws of mismatch theory research, they have reached
conclusions opposite to those of mismatch theory proponents. Id. at 25-26 (citing Stacy Berg
Dale & Alan B. Krueger, Estimating the Payoff to Attending a More Selective College: An
Application of Selection on Observables and Unobservables, 117 Q.J. Econ. 1491 (2002); Stacy
Berg Dale & Alan B. Krueger, Estimating the Return to College Selectivity over the Career
Using Administrative Earnings Data (Nat’l Bureau of Econ. Research, Working Paper No.
17159, June 2011), available at http://www.nber.org/papers/w17159). For example, a study
involving tax data found that, while the selectivity of a school does not increase earnings for
students as a whole, it does for black and Latino students. Id.

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In sum, plaintiff’s mismatch theory has no place in this case or any other. If Fisher I did
not fully put the mismatch argument to rest, Fisher II sounded its death knell, as it was raised,
considered,1 and in no way embraced by the Court’s opinion.
This Court has correctly ruled that plaintiff’s attempt to get evidence on current students’
academic performance from Harvard to further its use of mismatch theory is not likely to lead to
admissible evidence. Order ¶ 4, Sept. 9, 2016, ECF No. 181. Plaintiff’s assertions based on
mismatch theory, as Fisher II confirms, are not a legally sufficient basis to challenge the
universities’ compelling interest in using race-conscious admissions to achieve diversity.
CONCLUSION
For the foregoing reasons, the Court should grant Harvard’s motion for judgment on the
pleadings on Counts IV and VI.
Respectfully submitted,
Dated: October 19, 2016

/s/ Lawrence Culleen
Lawrence Culleen (pro hac vice)
ARNOLD & PORTER LLP
601 Massachusetts Ave., NW
Washington, DC 20004
(Please note new address)
202-942-5477
[e-mail]
/s/ Matthew Cregor
Matthew Cregor (BBO# 673785)
LAWYERS’ COMMITTEE FOR CIVIL
RIGHTS AND ECONOMIC JUSTICE
61 Batterymarch St., 5th Floor
Boston, MA 02110
617-988-0609
[e-mail]

1

See Transcript of Oral Argument at 67, Fisher v. University of Texas at Austin, 136 S. Ct.
2198 (2016) (No. 14-981), available at
https://www.supremecourt.gov/oral_arguments/argument_transcripts/14-981_4h25.pdf.
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/s/ Jon M. Greenbaum
Jon M. Greenbaum (pro hac vice)
LAWYERS’ COMMITTEE FOR CIVIL
RIGHTS UNDER LAW
1401 New York Avenue, NW, Suite 400
Washington, DC 20005
Tel: [phone]
[e-mail]
ATTORNEYS FOR AMICI CURIAE

CERTIFICATE OF CONFERENCE
In accordance with Local Rule 7.1(a), I hereby certify that counsel for Amici curiae
conferred with counsel for Plaintiff and counsel for Defendant with respect to this filing.
/s/ Lawrence Culleen
Lawrence Culleen

CERTIFICATE OF SERVICE
In accordance with Local Rule 5.2(b), I hereby certify that this document filed through
the ECF system on October 19, 2016 will be sent electronically to the registered participants as
identified on the Notice of Electronic Filing.
/s/ Lawrence Culleen
Lawrence Culleen

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